October 04, 2021


Jason A. Levine, Ryan Martin-Patterson, and Stephen Tagert


The top COVID-19 litigation developments since our last post are: challenges to workplace vaccination mandates by employees in Kentucky, Massachusetts, and New York; a similar challenge to the U.S. Armed Forces’ vaccination mandate; and a decision dismissing a workplace COVID-19 prevention and exposure lawsuit as barred by Texas’s liability shield statute.

1. Employees Across the Country Challenge Workplace Vaccination Mandates

Overview: Hospital workers in Kentucky and state police officers in Massachusetts lost efforts to enjoin vaccination mandates imposed by their employers. And in New York, plaintiffs, including hospital workers and a state legislator, sued Governor Kathleen Hochul, challenging her vaccination mandate for hospital employees.

Kentucky: On September 24, the U.S. District Court for the Eastern District of Kentucky denied a motion to enjoin a Kentucky hospital’s mandatory COVID-19 vaccination policy. The policy allows the hospital to terminate any employee who is not fully vaccinated for COVID-19 and did not include a medical or religious exemption. Plaintiff employees claimed that the policy violated their constitutional rights, and their rights under the Americans with Disabilities Act and Title VII of the U.S. Civil Rights Act. The court denied the motion and refused to enter a preliminary injunction. In particular, the court held that the hospital was likely to succeed on the merits, reasoning as follows: First, the hospital is not a state actor, rendering the constitutional claims inapplicable. Second, plaintiffs made no showing that the hospital did not provide necessary medical accommodations—it had granted 31 exemption requests. Third, none of the plaintiffs had actually been denied a religious exemption.

Massachusetts: On September 23, the Superior Court of Suffolk County, Massachusetts, denied a motion to enjoin Executive Order 595, which required all state executive branch employees to be fully COVID-19 vaccinated. Plaintiff, the union for the Massachusetts State Police, claimed that Massachusetts could not mandate vaccination outside the collective bargaining process. In denying plaintiff’s motion for a preliminary injunction, the court did not opine on the likelihood of success on the merits. Instead, the court held that the plaintiff had not demonstrated irreparable harm, and that the union’s right to collective bargaining was outweighed by the Commonwealth’s interest in protective the health and safety of its workforce.

New York: On September 24, a diverse group of plaintiffs comprising hospital employees, a nonprofit, and a state legislator sued the New York Department of Health and Governor Hochul to enjoin Emergency Regulation 10 NYCCR § 2.61, which requires hospital employees to be fully vaccinated against COVID-19. Plaintiffs claim that the Department of Health did not have jurisdiction to issue the Emergency Regulation, and that its adoption was contrary to New York law and was also arbitrary and capricious.

Our Take:While the volume of new cases is striking, we have not yet seen a court issue relief that would permit large groups of employees to avoid mandatory vaccination policies.

2. U.S. Servicemembers Sue Department of Defense Over Vaccination Mandate

Overview:Two U.S. servicemembers, an Army Staff Sergeant and a Marine Staff Sergeant, sued the heads of the Department of Defense, the Department of Health and Human Services, and the Food and Drug Administration on behalf of all other similarly situated active duty, Guard, and Reserve servicemembers in the U.S. District Court for the District of Colorado, seeking a preliminary injunction to bar mandatory vaccination of members of the U.S. Armed Forces.

Complaint: Both plaintiffs allege that they have natural immunity after having recovered from COVID-19. The Complaint asserts that federal law, 10 U.S.C. § 1107 and 10 U.S.C. § 1107a, prohibits the use of unlicensed vaccines and that Army regulations provide persons documented to have had an infection with a presumptive medical exemption from vaccination. The Complaint also alleges violations of the Administrative Procedure Act; 50 U.S.C. § 1520, the statute implementing the Nuremburg Code; and the Due Process Clause of the Fourteenth Amendment. Plaintiffs seek a ruling that all servicemembers who recovered from COVID-19 infection are entitled to medical exemption from vaccination.

Preliminary Injunction Motion: Plaintiffs also seek injunctive relief, arguing that they will likely succeed on the merits because the Pfizer BNT vaccine is not fully licensed; that plaintiffs will suffer irreparable injury because of the potential side effects of the vaccine, including myocarditis, pericarditis, and swollen lymph nodes; and that the balance of interests favor an injunction pending the lawsuit.

Our Take:Civilian courts are generally hesitant to intervene in military matters, and we will watch whether the court here opines on plaintiffs’ substantive claims.

3. Texas Court Holds That Texas Liability Shield Bars Poultry Workers’ Claims Relating to COVID-19 Workplace Safety

Overview: The U.S. District Court for the Eastern District of Texas granted Tyson Foods’ motion to dismiss workplace safety claims made by its poultry-factory employees.

Opinion:The employees alleged that Tyson failed to implement adequate safety measures, such as providing workplace PPE and enforcing social-distancing guidelines, after several States, including Texas, issued stay-stay-at-home orders in 2020. Plaintiffs assert claims for negligence and gross negligence. In June 2021, Texas passed the Pandemic Liability Protection Act (PLPA), which provided retroactive protections to businesses against COVID-19-exposure lawsuits. Tyson argued, and the court held, that the PLPA eradicated plaintiffs’ claims because it permits such claims only when a defendant knowingly failed to warn the plaintiff or knowingly flouted government COVID-19 guidance. The court independently held that the employees’ claims were preempted by the federal Poultry Products Inspection Act because the claimed duty would impose workplace requirements in addition to those authorized and promulgated by federal law.

Our Take: Many States have responded to COVID-19 by implementing liability shield laws that limit the availability of lawsuits to employees who contract COVID-19 in the workplace. In many instances, we would expect similar cases to be dismissed in States that have similar statutes.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP. Ryan Martin-Patterson and J. Stephen Tagert are litigation associates at the firm.